NATVARLAL HIRALAL Vs. J JAMNADAS AND COMPANY

JUDGEMENT

(1.) The petitioner seeks to challenge the order dated 24/12/1992, passed by the 5th Joint Civil Judge (S.D.), Surat, below application Ex. 100, in Regular Civil Suit No. 497 of 1964, by which the document which was produced at Ex. 97 was impounded, holding that it was liable to stamp duty of Rs. 75,590.00 and a penalty of Rs. 7,55,900.00. The petitioner instituted the suit for specific performance of an agreement to lease dated 10-3-1983 by directing the respondents to place the petitioner in possession of two floors of the premises bearing Nondh 2509 situated at Ward No. 4, Surat. It appears that during the proceedings the document dated 10-3-1983 was produced and exhibited at Ex. 97. Thereafter, the respondents made application Ex. 100 on 11-8-1992 contending that the document could not be admitted in evidence as it was not registered nor was it properly stamped. The application was contested by the petitioner contending that the said document was only a memorandum of understanding and was not a lease deed. The learned trial Judge was of the view that even an agreement to lease fell within the purview of Art. 30 of the Bombay Stamp Duty Act, 1958, hereinafter referred to as 'the Act', and, therefore, the stamp duty as was leviable on conveyance under Art. 20 was leviable on the document in view of the provisions of Art. 30(c) of Schedule I to the Act.

(2.) The learned Counsel appearing for the petitioner submitted that the document in question was an agreement to lease under which there was no transfer of any interest made in presenti. It was, therefore, only a memorandum of agreement which was subject to a duty of Rs. 10.00under Art. 5 (h) of Schedule I to the Act. The learned Counsel for the respondents, Mr. Sanjanwala, submitted that it was difficult to support the order made by the trial Court as the document was only a memorandum of agreement which could not have been impounded. Under the document Ex. 97, it was stipulated that on completion of construction of two floors, the premises would be given on rent to the petitioner at a monthly rent of Rs. 7.500.00 and a rent note shall be executed accordingly. At the time of executing the rent note a security deposit of Rs. 45,000.00 would be given. It is clear from the nature of the document Ex. 97 that there is no actual demise made and it is only an executory instrument binding the parties, the one to grant and the other to accept the lease in future in respect of the two floors which were to be constructed.

(3.) The relevant provisions of Art. 30(c) which have been made applicable by the learned trial Judge read as under :